The Senate, Not the FBI, Should Investigate Kavanaugh

Instead of surrendering another core function of Congress to the executive branch.

Barbara Jordan of Texas sat on the House Judiciary Committee as a freshman during the Watergate hearings, 1974. (Wikimedia Commons/U.S. House of Representatives)

The Senate Judiciary Committee, not the FBI, should investigate the sexual assault allegations against Supreme Court nominee Judge Brett Kavanaugh. The current FBI investigation compromises the independent advise and consent role of the Senate under the Appointments Clause of the Constitution.

The FBI is saddled with an institutional conflict of interest in investigating these allegations. FBI Director Christopher Wray serves at the pleasure of President Trump. The White House stipulates the terms of the investigation. That means Trump is currently investigating his own nominee in violation of the precept that no person can be a judge in his own case. Justice, like Caesar’s wife, should be above suspicion.

A Senate Judiciary Committee investigation of the Kavanaugh allegations would avoid the FBI’s institutional conflict of interest. The committee’s constitutional role is not supposed to be cheerleader for the nominee, but independent evaluator of his fitness for the Supreme Court, including temperament, truthfulness, and character. (Witness Associate Justice Abe Fortas, who resigned in 1969 for accepting financial payments from convicted stock swindler Louis Wolfson and the Wolfson Foundation.)

Majority and minority staff should participate in all witness interviews and document reviews to prevent investigatory bias. Key witnesses should be subpoenaed to testify publicly before the committee, as have Christine Blasey Ford and Kavanaugh. Body language and tone are worth a thousand words. And public testimony would provide a window through which voters can view committee members, as well as a needed civics lesson. Senator Jeff Flake can insist that the committee majority pursue a thorough, impartial, and public investigation of the allegations at the risk of losing his vote in favor of Kavanaugh on the Senate floor.

There is no need to rush. The Supreme Court operated satisfactorily with eight justices as Barack Obama’s nomination of Merrick Garland hung in suspended animation for 293 days. Even if Democrats capture control of the Senate in November, the current Republican majority would have ample time to vote on Kavanaugh’s nomination during the lame duck session. Just as in journalism, it is more important to get it right than to publish first. And when voting on Supreme Court nominees, it is more important for the Senate to be fully informed than to act quickly.

The Senate Judiciary Committee’s investigation of the Kavanaugh allegations with congressional staff would be no novelty. The Senate Watergate Committee, the Church Committee, and the Joint Congressional Committee on Covert Arms Sales to Iran investigated executive branch wrongdoing with committee staff.

Furthermore, the congressional power of investigation was acknowledged by the Supreme Court as far back as Anderson v. Dunn in 1821. It should be used by the Judiciary Committee, not surrendered to the FBI.

Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.

Indeed, the Senate should be taking the lead on the investigation; however, it’s grown so incompetent that it likely can’t do so and thus will push for the FBI to take on responsibility. The FBI is perfectly capable of conducting a proper investigation, but a proper investigation is exactly what Trump and his supplicants do not want. So, we should expect more attempted interference by the White House, more nasty tweets from Trump denigrating the FBI and DOJ, and more absurd “Deep State” accusations from Trump’s propaganda mouthpieces at Fox, et al.

“There is no need to rush. The Supreme Court operated satisfactorily with eight justices as Barack Obama’s nomination of Merrick Garland hung in suspended animation for 293 days. Even if Democrats capture control of the Senate in November, the current Republican majority would have ample time to vote on Kavanaugh’s nomination during the lame duck session. Just as in journalism, it is more important to get it right than to publish first. And when voting on Supreme Court nominees, it is more important for the Senate to be fully informed than to act quickly.”

Ignorance at it’s finest. So I assume Mr. Fein, that despite all of the signs and confirmation that this is a McCarthyist show trial riddled with political infighting, is an actual legitimate event to take seriously? Get your brain out of the gutter of petty ideology as to how “things should go A, B, C” when the profligate politicians of our time use such a system for their petty ends.

Rule of law is non-existant here. What matters is that this trial ends and Kavanaugh is confirmed, by any and all means necessary. The Democrats will perform the same unorthodox tactics in order for him to not be nominated. Curb your belief in the mythology of due process, because it obviously has no place here, according to the degenerates of the Democrat Party and their sympathizers.

Politically, McConnell does not want a vote, he wants a confirmation. To wait until after the mid term election results would require a vote of confidence in both Kavanaugh and his Senators.

“Even if Democrats capture control of the Senate in November, the current Republican majority would have ample time to vote on Kavanaugh’s nomination during the lame duck session.”

This would assume that the current Republican majority would be content to “let the vote be done though the heavens fall”.

There has been a thread of entitlement running through this entire selection, nomination and confirmation attempt, and McConnell supposedly even warned the administration to not place their one certain bet and vote on a dubious candidate – one that was so closely tied to partisan efforts before his Bush 43 court appointment.

Donald Trump has made his decision; now McConnell has to deliver on it, just as he delivered on Garland/Gorsuch. His paymasters do not care about anything but future results.

The case should not be investigated at all. It’s an accusation of a crime. That is what background checks are for, and the only thing the FBI does in a background check is contact the relevant law enforcement agency for criminal records. The FBI does not investigate crimes on its own as part of a background check. Especially given that it doesn’t have jurisdiction here. If the accuser were to open a complaint today in the county where she claimed it happened, they’d register the complaint, and close the case because the act was a misdemeanor with a one year statute of limitations at the time it is claimed to have occurred. That should have been the end of it.

“Investigations should be carried by people who know how to do it. The FBI does know how to do it.”

Yeah, but…
Reporting suggests that the FBI (perhaps taken their cue from what would please the White House) has chosen to conduct a somewhat narrow investigation, to the extent they are reportedly ignoring people who claim to have contacted the FBI with pertinent knowledge.
So, we’re where we were before- one side wants a full investigation, while the other appears to be afraid of what that would uncover.

Mr. Fein is absolutely correct, and if the Senate and its staff is out of practice, then there’s no time like the present to get back to it. Off the top of my head, the best moments in the history of the U.S. Congress were its investigations into banking and its role in the Great Depression in the 1930’s, Watergate and the CIA in the 1970’s, the Iran-Contra scheme in the 1980’s, and on-going racial discrimination in elections as part of the last reauthorization of the Voting Rights Act by a GOP-led House in the 2000 aughts.

They would be the first logical choice for a criminal complaint to be filed.”
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True, & that’s how it works for ordinary sexual assault victims. They don’t get to bypass the entire legal system when they accuse a non-celebrity.

But at this point in time we are where we are & hopefully the FBI can help to wrap things up.

The FBI is capable of investigating this mess. The Senate staff is not able to do anything without political interference. There has NOT been a thorough FBI investigation. They have not even talked to Professor Ford not Judge Kavanaugh UNDER OATH. This so called investigation is more like a coverup but that will be suffice for the Republicans.

If the senators of Maine, Alaska and Arizona still vote for confirmation with all of this, then it is clear that this party is corrupt from top to bottom and everything in between.

“Body language and tone are worth a thousand words. And public testimony would provide a window through which voters can view committee members, as well as a needed civics lesson.”

Of the all the new founded investigative “aha’s” from bite marks, dna, hair samples, voice analysis, hand writing, lie detection technology fancy voice analyzer), eye directional assessments, speech patterns touted as definitive scientific proof “nonverbal” analysis ranks among the worst. Leakage is an actual phenomena, but whether it is indicative of someone telling a lie requires more than course taught by two of its premier researchers, Dr. Paul Ekman and Dr. Wallace Friesen has been one of the most abusive tactics in modern times. And despite my deep, deep and deep admiration of the effort and work of both men, particularly Dr. Ekman, one cannot be but deeply disappointed about how that research has been applied —

Dr. Ekman has spent forty years or more on this subject. Forty years of intense, painstaking research and analysis. The idea that anyone could take a course and inherent what has taken him nearly a lifetime to understand is grotesque. The value of his work demands far more respect than even he has restricted it to. Well, there was a time when he expressed caution about nonverbal cuing to truth, assessments. But its popularity and demand especially by those in law enforcement, security and intelligence agencies has disarmed him — my opinion. Not to mention the volumes of dollars one might pay to know the fraction of what he and Dr. Freisen have learned. it’s application is being applied as if nonverbal cuing is an exact science – not even. I once had a ticket agent tell me she could tell by the way my eyes moved up and to the right or to the left that I was being dishonest — huh? What utter nonsense, she asked a question and I was trying to think what she meant by it and trying to get an answer. It was surreal. The level experts, now include phone operators, and store clerks — truth is not indicated by tone of voice, but by the content of what is spoken. The variances in nonverbal cues are as different as they are people, situations . . .

My mother who bathed me, fed me and inspected my every twitch over time despite mom’s supposed sixth sense and women’s intuition, could be fooled and could spot a lie where no lie existed without so much as a hmmmm.

Juries have been setting the guilty free and sending the innocent to the chair since time immemorial.

Nonverbal cue deciphering is not useless, but it is very limited in scope – especially in charged environments in which motivations are at play such as this.

In the real world, I’m not sure what to think. The Senate is both so corrupt and so incompetent that they cannot be trusted to investigate anything wisely or impartially. It is truly unfortunate that these dregs of humanity have the choice of the next SCOTUS justice in their hands. I think the Founders had something much different in mind from the kind of Senate we have nowadays.

As for the FBI, they at least have the advantage of doing this kind of thing all the time and knowing how to do it. But they are subject to political interference from the White House, as Fein points out, and this really does violate separation of powers.

We live in a time when none of society’s institutions are trusted–and they are mistrusted for good reason. In that kind of environment problems become unsolvable. This is how societies die.

The judiciary, particularly the Supreme Court, is supposed to be independent of the political passions of the day, concentrating instead on the law and the law alone. So it follows that the Supreme Court nominating process should be taken out of the hands of the other two branches, given that the members of Congress and the Executive branch both have skin in the game, and placed where it belongs–in the hands of the judiciary itself via some kind of peer review. SCOTUS justices aren’t supposed to serve conservatives or liberals, Republicans or Democrats. They’re supposed to serve The Law.

Now, it won’t happen of course. We all know that, right? On the other hand, hey, we can always dream, can’t we?

At this point it is “he said she said” but wait! She said there was a third person in the room, Mike Judge. Don’t you all find it beyond strange that the FBI hasn’t interviewed him?

In the end if the FBI does a crappy job, there will always be questions about the legitimacy of O’Kavanaugh.

Personally watching some of the hearings I was disappointed, “I know you are but what am I” (well not really) wasn’t an acceptable response to a question in third grade and shouldn’t be considered acceptable from a prospective Supreme court justice.

If you’re concerned about bias, then you should be demanding a local police investigation in Deep Blue Montgomery County, Maryland. And since you and every other progressive crank around here has conspicuously avoided doing so, I rest my case.

If Dr. Ford and her lawyers had done that 3 months ago, you really wouldn’t have anything to complain about, which is the point here:

If you won’t explain, you’ve no reason to complain.

So what are you, and Ford, and Senator Democrats afraid of? An actual criminal investigation?

And why is that? Is it because it would involve due process? Discovery? The possibility of a false police report?

I think it’s time to end the charade. From here on out, no Justice will ever be anything other than a pure partisan political hack. That’s the rules that the GOP has established, first with Garland now with Kavanaugh; there’s no putting that genie back in the bottle. So amend the Constitution to recognize the reality. No more lifetime appointments. 18 year terms, staggered every 2 years. Every President gets to name 2, no more no less. Get reelected, you get 2 more. Period. The Senate gets 60 days to examine and evaluate, then the nominee is automatically confirmed UNLESS the Senate votes to reject by a 2/3 majority.

Sometimes it seems that Congress’s main goal is to avoid taking responsibility for anything. Given the way it “lies back and enjoys it” when successive presidents have ravished it of its constitutional powers and responsibilities, if wouldn’t be in the least surprising if it were to cede its advise and consent role, always providing of course, that that wouldn’t deprive it of camera time.

Congress is full of cowards. The kind who fear bullies and mobs and are only brave when they are doing the bullying or part of a mob.